1. Rule. Mr. Alkesh Shah, learned Assistant Government Pleader waives notice of Rule on behalf of the respondents.
2. Considering the fact that the matter pertains to non-consideration of an application filed by the petitioner for being considered for compassionate appointment by communication dated 29.4.2010 (Annexure 'A') in the present petition, with consent of both the sides, the matter is taken up for final hearing forthwith.
3. The facts that can be carved out from the record of the petition are as under.
4. That the father of the petitioner was working as Armed Head Constable at Anklav Police Station in Anand district. The father of the petitioner expired on 12.12.2007 while in service. The petitioner, being unmarried daughter of deceased Rameshbhai Motibhai Makwana submitted an application vide communication dated 10.1.2008 for being considered for compassionate appointment. It reveals from the record of the petition that the petitioner has studied upto 12th Standard and has also passed the CCS Examination from IIT Tarsali. Again by communication dated 11.6.2008 the petitioner submitted an application along with written request for being considered for compassionate appointment.
5. Ultimately by communication dated 13.1.2009 respondent No.2 herein intimated the petitioner that her application has been referred to respondent No.4 –Committee as the petitioner was not holding minimum age on the date of application. It transpires from the record that by communication dated 29.4.2010 the petitioner has been informed by respondent No.3 – District Superintendent of Police, Anand District intimated her that the selection committee has refused the proposal for giving compassionate appointment. Being aggrieved by the said communication/decision the present petition is filed.
6. Mr. Thakkar, learned Counsel for the petitioner has taken this Court through the factual matrix of the matter as well as the relevant documents on record. Mr. Thakkar pointed out that because of the reason that the father of the petitioner was the only earing member, the petitioner immediately applied for being considered for compassionate appointment. Mr. Thakkar further pointed out that the petitioner was 17 years 11 months and 2 days old on the date on which the application was made. Mr. Thakkar contended that even as per the policy of the Government, the Government could have either condoned 28 days as technically the petitioner attained majority after 28 days from the date of application. Mr. Thakkar also submitted that in fact the respondents could have waited for 28 days and such a vital fact is not taken into consideration while passing the impugned order/decision dated 8.4.2010.
7. Per contra Mr. Alkesh Shah, learned Assistant Government Pleader read Affidavit-in-Reply filed by respondent No.3 and has pointed out that in fact the mother being wife of deceased Rameshbhai Motibhai Makwana could have applied instead of waiting for the petitioner to become major. Mr. Shah further pointed out that in fact, the sad demise of the father of the petitioner has not caused very serious financial crisis in the family and therefore the element of 'die in harness' was absent in the present case. Mr. Shah has therefore supported the decision taken by the respondent which is impugned in the present petition.
8. Having considered the submissions made on behalf of the petitioners and on perusal of the record it transpires that the respondents have not rightly decided the issue which was before it. It would be evident from the impugned communication itself that the date on which the application was made by the petitioner is mentioned as date of sad demise of the father of the petitioner. It is a well known principle that compassionate appointment is not a right and therefore the petitioners cannot claim the said benefit as a matter of right. However, when such an application is made the respondents have to consider the same as per the policy of the State Government. It appears from the order impugned that the application made by the petitioner is rejected on the ground of age criteria. It is pertinent to note that ground which is tried to be canvassed in the Affidavit-in-Reply filed by respondent No.3 to the effect that the mother of the petitioner could have applied is not found in the impugned order. It is an admitted position that the petitioner had applied vide application dated 10.1.2008 and on that date the petitioner was aged 17 years, 11 months and 2 days. At this juncture, it would be appropriate to refer to the judgment of the Hon'ble Division Bench of this Court (Coram : Hon'ble the Chief Justice Mr. S.J.Mukhopadhaya (as he then was) and Hon'ble Mr. Justice K.M.Thaker)in Letters Patent Appeal No. 2615 of 2010 in Special Civil Application No. 13658 of 2009 dated 14.12.2010 in case of Digvijaysinh Mahendrasinh Gohil Vs. State of Gujarat, wherein this Court has decided the similar case as under :
“The matter relates to compassionate appointment. The father of the petitioner-Late Shri Mahendrasinh Gohil was serving as a Gujarati Typist in the Panchayat Gram Gruh Nirman & Gram Vikas Department of the State. Shri Mahendrasinh Gohil died in harness on 21st June 2005. The appellant, who had completed 17 years of age, applied for compassionate employment within time [ie., six months] on 30th August 2005 with all necessary documents but the respondents rejected it on 6th January 2006 on the ground that the applicant was minor. On attaining majority ie., 18 years of age on 28th November 2006, the appellant applied afresh for compassionate appointment, but this time, it was rejected on the ground that he had not applied within the prescribed period of six months. Learned Single Judge having dismissed the writ petition, the present Appeal has been preferred.
Learned counsel for the appellant submitted that the application for compassionate appointment was preferred within time; the appellant having attained majority within one and a half year of the death of his father, there being no delay, therefore, the respondents ought to have considered his case on compassionate grounds.
Per contra, learned State counsel submitted that application, the same being barred by the period of limitation prescribed, was rightly rejected by the authorities.
We have heard learned counsel for the parties and perused the record.
It is not in dispute that the appellant technically applied within time on 30th August 2005. If he was minor, the matter ought to have been kept pending by the respondents, as he was to attain majority within few months. It is also not in dispute that compassionate employment was required by one of the members of bereaved family. That ground having not taken in the order of rejection by the respondents, we are of the view that they should reconsider the case of the appellant for compassionate appointment.
For the reasons aforestated, while we are setting aside the letter dated 12th January 2009 issued by the 3rd respondent/competent authority and the order dated 24th February 2010 passed by the learned Single Judge in Special Civil Application No. 13658/2009, remit the case to the respondents/competent authority with a direction to consider the case of the appellant for compassionate appointment on merit within two months from the date of receipt/production of the copy of this Order.
Appeal is allowed with the aforesaid observation and direction but there shall be no order as to costs.”
9. The ratio laid down by the Hon'ble Division Bench in the case of Digvijaysinh Mahendrasinh Gohil (supra) applies to the present case and resultantly the petition is accepted. The impugned communication/decision dated 29.4.2010 is hereby quashed and set aside and the respondents are directed to consider the case of the petitioner denovo in accordance with law as per the scheme of the respondents within a period of three months from the date of the receipt of this order. Accordingly, the petition is allowed. Rule made absolute to the aforesaid extent only with no order as to costs.
Sd/-
(R.M. Chhaya, J.) M.M.BHATT